In re Fourth Judicial District

• Decision Date: 24 April 1893
• Citation: 4 Wyo. 133,32 P. 850
• Parties: IN RE THE FOURTH JUDICIAL DISTRICT
• Court: Wyoming Supreme Court

32 P. 850

4 Wyo. 133

IN RE THE FOURTH JUDICIAL DISTRICT

Supreme Court of Wyoming

April 24, 1893

April 3, 1893, Petition Filed

ORIGINAL APPLICATION by the county and prosecuting attorney for Johnson County by direction of the board of the county commissioners of said county praying that the court direct the Attorney General to cause the institution of proceedings in the nature of quo warranto for the purpose of inquiring into and determining by what right or authority William S Metz assumes to exercise the powers and functions of a judge of the district court within the County of Johnson and elsewhere in the State of Wyoming. The second legislature of the State had passed an act entitled "An act to define the judicial districts of the State, and prescribing the time for holding the terms of the district court in the several counties in each judicial district," which act was approved February 9, 1893. By that act the counties of Johnson, Sheridan, Crook and Weston (and Big Horn when organized) were to compose the Fourth District, which was a new and additional district; said counties theretofore belonging to one of the three districts into which the State was formerly divided. The new act provided that the judge of the Fourth District should be appointed by the Governor, and that he should hold his office until the next succeeding general election for district judges, and until his successor should be elected and qualified. The Governor appointed Hon William S. Metz as such judge, and he qualified and entered upon the discharge of the duties of that office. The act was assailed as unconstitutional, and its validity being questioned, the commissioners of Johnson County in a resolution reciting that such question had been raised, and that many important civil and criminal cases were pending in the court to be held in that county, instructed the county attorney to bring these proceedings. The reasons for doubting the constitutionality of the act are stated in the opinion. The act was declared constitutional, and the application was refused.

Motion denied.

Alvin Bennett, county attorney, and M. C. Brown and Charles H Burritt, for the application.

Counsel for the application argued and contended that the act creating the fourth judicial district was unconstitutional for the reason that the title did not mention the creation of a new district; that the title of an act defines its scope; it cannot contain any valid provision beyond the range of the subject stated in its title; and cited the following: (Sutherland Stat. Const., Sec. 102; State v. Silver, 9 Nev., 227; County v. Hunton, 49 Ala. 507; Breiswick v. Major, 51 Ga. 639; Davis v. State, 7 Md. 115; 16 Neb. 238; Robinson v. Skipworth, 23 Ind. 311; Sutherland Stat. Const., Secs. 103, 98, 99, 97 and 95; In re Sackett, 74 N.Y. 95; People v. Deuehy, 20 Mich. 349; Cooley's Const. Lim. (1st Ed.), 141 to 151, and authorities cited on pp. 147 and 148.)

Lacey & Van Devanter and A. C. Campbell, as amici curiae, contra.

The question involved in this proceeding is whether the judicial district act, passed at the late session of the legislature, entitled "An act to define the judicial districts of the State, and prescribing the time for holding the terms of the district court in the several counties of each judicial district" violates Sec. 24 of Art. 3, of the State constitution, providing: "No bill * * * shall be passed containing more than one subject, which shall be clearly expressed in its title." We think that the effect of the oral arguments has been to reduce the question to whether the subject of the act is "clearly expressed in its title," and that it is, in effect, conceded that the act is not one "containing more than one subject." As showing the rule by which the sufficiency of the title of such an act is to be determined, we cite the following authorities: Cooley's Con. Lim., 6th Ed., 169-180; Sutherland Stat. Con., Secs. 76-100; People v. Mahanney, 13 Mich. 481; Inkster v. Carver, 16 Mich. 484; Mauch Chunk v. McGee, 81 Pa. 433; Howland, etc., v. Brown, 13 Bush. (Ky.), 681; People v. Ins. Co., 19 Mich. 392; Ct. Ins. Co. v. Treasurer, 31 Mich. 6; People v. Wands, 23 Mich. 385; Kurtz v. People, 33 Mich. 279; People v. Bradley, 36 Mich. 447; Continental Co. v. Phelps, 47 Mich. 299; Golden v. Canal Co., 8 Colo., 144; Clare v. People, 9 Colo., 122; Dallas v. Redman, 10 Colo. 297; Ex parte Liddell, 93 Cal. 633; Phillips v. Bridge Co., 2 Met. (Ky.), 219; Johnson v. Higgins, 3 Met. (Ky.), 566; Poffenger v. Smith, 27 Neb. 788; St. Louis v. Teifel, 42 Mo. 578; State v. Matthews, 44 Mo. 523; State v. Bank, 45 Mo. 528; State v. Miller, 45 Mo. 495; State v. Ransom, 73 Mo. 78; Ewing v. Hoblitzelle, 85 Mo. 64; Mayor v. State, 30 Md. 112; State v. Union, 33 N. J. L., 350; Bellville, etc., v. Gregory, 15 Ill. 20; Firemen's, etc., v. Lounsbury, 21 Ill. 511; Supervisors v. People, 25 Ill. 163; O'Leary v. Cook Co., 28 Ill. 534; City of Verden v. Allen, 107 Ill. 505; Humboldt v. Churchill, 6 Nev., 30; State v. County Judge, 2 Ia., 280; Davis v. Woolnough, 9 Ia., 104; San Antonio v. Mehaffy, 96 U.S. 312; Montclair v. Ramsdell, 107 U.S. 147; City of Jonesboro v. Cairo, etc., 110 U.S. 192; Ottoe v. Baldwin, 111 U.S. 1; Mahomet v. Quackenbush, 117 U.S. 508; Haggard v. Hawkins, 14 Ind. 299; Grandin v. State, 16 Ind. 197; Hingle v. State, 24 Ind. 28; Bright v. McCullough, 27 Ind. 223; State v. Pitman, 46 Ind. 355; Commonwealth v. Green, 58 Pa. 226; Harding v. People, 10 Colo. 387; Conner v. Mayor, 5 N.Y. 285; Brewster v. Syracuse, 19 N.Y. 116; Devlin v. Mayor, 63 N.Y. 8; Board v. Spitler, 13 Ind. 235.

The word "define" is frequently used in legislation to mean create, enlarge or extend. People v. Bradley, 36 Mich. 447.

Creation of a new judicial district necessarily created office of judge thereof. Stocking v. State, 7 Ind. 326; Rice v. State, 7 Ind. 332; People v. Burch, 84 Mich. 408; see also State v. Pitman, 46 Ind. 355; Commonwealth v. Green, 58 Pa. 226.

The real subject of the act was the dividing of the State into judicial districts; the title of the act was sufficient to cover this subject, and the title did not indicate the number of districts into which the State was divided, and therefore was not deceptive, but necessarily referred the reader to the body of the act. As a part of the determining of the judicial districts, the defining or fixing of them, the number thereof could be defined and determined to the same extent that their boundaries could be defined and determined, so long as the number was not increased beyond the constitutional limit. As an incident of, and as necessarily connected with, the division of the State into judicial districts, it was proper to insert in the act anything that would carry into effect the division so made, such as providing for the terms of court therein, and for judges to hold such courts. If the title in question was sufficient to cover a division of the State into four districts, then the whole question has been solved. Meacham on Public Officers, Sec. 132; Throop on Public Officers, Sec. 431; State v. Askhew, 48 Ark. 82, and authorities above cited.

Under our constitution and statutes district judges are to be elected at general elections, and if necessary, it was proper for the legislature to provide for a provisional appointment. Judge Metz's term of office under his present appointment is not in question. If it is the duty of the Governor to issue a call for the election of a district judge in the Fourth District, at the next general election, the presumption is that he will perform that duty. It is not to be presumed that Judge Metz will attempt to serve beyond his lawful term.

It was suggested in the argument that the creation of an additional district judge must necessarily be made, if made at all, under the authority contained in Sec. 11 of Art. 4, of the constitution, viz.: "The legislature may provide for such other State officers as are deemed necessary." The interpretation of the words "State officers here used, must be largely determined by the connection in which they are used. That section provides for "a Secretary of State, Auditor, Treasurer and Superintendent of Public Instruction," all of whom are elected by the entire people of the State, and all of whom serve the entire people of the State. Their office and other duties are in no sense local or confined to any subdivision of the State or portion thereof less than the whole. After thus creating these officers, the provision that the legislature may provide for other State officers, necessarily means that the other officers shall be of the same general character as those theretofore specifically mentioned in the section, and does not refer to a district judge, whose residence, duties and office are all confined to a subdivision of the State; thus making him a district officer as contradistinguished from the term State officer. Our constitution Sec. 19 of Art. 5, Secs. 20 and 21 of Art. 6, and Secs. 9, 11 and 20 of the schedule, show clearly that the constitutional convention treated district judges as district officers, and not as State officers.

If the title of the act had been "to re-define the judicial districts of the State," it would have been sufficient. State v. Atherton, 19 Nev. 332-344.

The omission of the prefix "re" cannot have rendered the title misleading. In view of existing conditions it meant the same thing whether the prefix was used or not. The subject of judicial districts was already defined by legislation, and to define it again was necessarily to "re-define" it--to cover the subject of judicial districts by new legislation.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

This is a motion or an...